The topic I am covering today is not an easy one to speak about. It sits at the intersection of two scary topics: a terrible disease and potentially losing your independence. For the past couple of years, I have had the honor of speaking at the Rocky Mountain Conference on Dementia. It is truly an honor, but it also not fun for me because I have to tell people that they are probably better off hanging up their keys. Essentially that means I’m telling a room full of people to give up their independence.
One of the honors of working for The Sawaya Law Firm is being part of group that seeks to better its community. Every year, Mr. Sawaya graciously offers to cover peoples’ taxi rides on days known for people drinking excessive amounts of alcohol. He does this to encourage people to be safe. We represent people hit by drunk drivers all the time. And yet Mr. Sawaya seeks to do his part to keep as many of those potential drunk drivers off the road because he recognizes that some things are more important than business. Keeping people safe is more important. In that same vein, telling people about the perils of driving with a diagnosis of dementia is also to keep people safe.
A diagnosis of dementia, especially early stages, puts a driver at great legal risk. For the purposes of this post, I will focus on just the civil consequences. Many people can competently drive with an early stage diagnosis. But there are also those people living with the diagnosis (PLWD) of dementia that can’t always competently drive. What makes early stage more dangerous is that the PLWD cannot predict when he or she will be affected by the disease.
Colorado defines willful and wanton conduct as “an act or omission purposefully committed by a person who must have realized that the conduct was dangerous and which conduct was done heedlessly or reckless, either without regard to the consequences or without regard to the rights or safety of others.” See Colorado Civil Jury Instruction 9:30. Additionally a mental handicap does not provide any protection as the law states “a mentally or physically handicapped driver has the same duty of care as a driver who is not handicapped.” See Colorado Civil Jury Instruction 11:6 and Johnson v. Lambotte, 363 P.2d 165 (Colo. 1961).
By driving with an early stage diagnosis you are putting yourself in a position to potentially be personally liable for the damage done. By personally liable, I mean your insurance will does not have to cover those exemplary damages awarded by a jury. This is so because if you have knowledge that at any moment you can become a dangerous driver due to your disease causing a “bad day” then you have knowledge that you are putting others safety at risk and ignoring those potential consequences.
With that said, I am completely sympathetic to PLWD. In our society, the car is central to our independence as people. It’s how we get things, go places and see people many times. But the automobile is the leading cause of death in the United States (https://www.cdc.gov/motorvehiclesafety/costs/index.html). In Colorado automobiles are responsible for 30,000 deaths a year. (https://www.cdc.gov/motorvehiclesafety/pdf/statecosts/CO-2015CostofCrashDeaths-a.pdf )To ignore the dangers of a metal exoskeleton that weighs thousands of pounds in the hands of someone that may or may not be competent to drive the vehicle is reckless. Aside from hurting others, you might hurt yourself. And the goal is keep people safe.
So what can be done? For starters, plan. Once you get a diagnosis, it is time to start making long term plans on how you will get around. Start with family and friends. You can try to set up a carpool to and from places, such as work, with someone that does not have a disease. There are also public resources such as RTD. Public transportation can be a hassle, but Denver is better than most metro areas and riding the lightrail and bus is better than possibly seriously injuring someone. There are also pricier options as Lyft and Uber if you can afford it. But even those companies offer a type of subscription now. If you need groceries, most companies deliver now or there is always an option such as Blue Apron or Amazon Fresh. So you have options. Just take a deep breath and work out a plan. Ask for help.
If you have dementia, the last thing you want to probably think about is something simple like, “how do I get from A to B. How do I get groceries?” But if you plan, you will minimize the effect a diagnosis such as dementia might have on your life. It’s never going to perfect. But better to keep people safe, including yourself and be a little inconvenienced than hurt someone and put yourself at potential legal risk.